Tag Archive for: Matter of Zeleniak

David Isaacson

Matter of Douglas: The BIA Confirms That Brand X Can Sometimes be a Force For Good

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On October 17, 2013, its first day back to normal operations after the end of the recent federal government shutdown, the Board of Immigration Appeals (BIA) issued a precedential opinion, Matter of Douglas, 26 I&N Dec. 197 (BIA 2013).  At first glance, Matter of Douglas is about an interesting but obscure aspect of a section of the Immigration and Nationality Act (INA) that was repealed more than a decade ago.  But perhaps more importantly, Matter of Douglas is also an example of the BIA using its authority to go against Court of Appeals precedent decisions under National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), to the benefit of an immigrant and potential U.S. citizen rather than to the detriment of the immigrant.At issue in Matter of Douglas was former section 321(a) of the INA, repealed effective February 2001 by the Child Citizenship Act of 2000, which in relevant part replaced INA §321(a) with the simpler rule of current INA §320.  As Matter of Douglas explained, former §321(a)

provided that citizenship was automatically acquired by a child born outside the United States of alien parents under the following conditions:

(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents, is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of the subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

Matter of Douglas, 26 I&N Dec. in 198 (emphasis in original).The question in Matter of Douglas was the relevance of the order in which the conditions of former INA §321(a) were satisfied.  As the BIA explained, Mr. Douglas

was born in Jamaica on January 29, 1976, to his married parents, each of whom was a native and citizen of Jamaica. On December 14, 1981, [Mr. Douglas] entered the United States as a lawful permanent resident. [Mr. Douglas]’s mother was naturalized on April 13, 1988. His parents were divorced on July 25, 1990. [He] became 18 years old in 1994.

Matter of Douglas, 26 I&N Dec. at 198.  That is, Mr. Douglas’s mother became “the parent having legal custody of the child when there has been a legal separation of the parents” under former INA §321(a)(3) only after she was naturalized, having been naturalized in 1988 and divorced in 1990.  Both of these events, however, happened while Mr. Douglas was a lawful permanent resident and before he reached the age of 18, in compliance with former INA §321(a)(4)-(5).In its earlier decision in Matter of Baires, 24 I&N Dec. 467 (BIA 2008), the BIA had held that “A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act . . . before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization.”  Matter of Baires, 24 I&N Dec. at 467.  Under this rule, Mr. Douglas would be a U.S. citizen.  Case law of the U.S. Court of Appeals for the Third Circuit, however, as the BIA acknowledged, required that one seeking to show acquisition of citizenship under former INA §321(a)(3) demonstrate “that his [parent] was naturalized after a legal separation from his [other parent],” rather than before such a separation.  Jordon v. Att’y Gen., 424 F.3d 320, 330 (3d Cir. 2005)(alterations in original) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)).  In Matter of Baires, the BIA had noted the Third Circuit case law, but had indicated that “we are not bound by the Third Circuit decisions on which the Immigration Judge relied because this case is within the jurisdiction of the Fifth Circuit.” 24 I&N Dec. at 469.  The proceedings in Matter of Douglas, however, had taken place within the jurisdiction of the Third Circuit, and so the BIA had to decide whether to follow Matter of Baires or the Third Circuit’s decisions in Jordon and Bagot.

The BIA chose to follow Matter of Baires, rather than Jordon and Bagot, and so found Mr. Douglas to be a U.S. citizen and terminated his removal proceedings.  Under Brand X, as the BIA explained, an administrative agency such as the BIA can sometimes be entitled to “Chevrondeference” pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) regarding its interpretation of a statute, even when there has been a prior court interpretation of the statute going the other way, so long as that court did not find that the statute unambiguously supported its interpretation.  Believing that its interpretation in Baires was a reasonable interpretation of the statute, and that Jordon and Bagot had not interpreted the statute to be unambiguous, the BIA concluded that under Brand X it could and would follow Baires, rather that Jordonand Bagot, even in the Third Circuit.

It appears that this may be the first time that the BIA has explicitly relied on Brand X to rule in favor of the immigrant respondent.  The BIA has, to be sure, previously rejected Court of Appeals case law that it thought to be incorrect in favor of a more immigrant-friendly approach. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock).  The proceedings underlying Matter of F-P-R-, however, appear to have taken place in the Ninth Circuit, not the Second, see 24 I&N Dec. at 682 (referring to “the absence of any controlling decisions on the issue from either the United States Court of Appeals for the Ninth Circuit or the Board”), and so the BIA did not have to determine whether it would follow Joaquin-Porras within the Second Circuit.  Here, in contrast, the BIA held that it would not follow Jordon and Bagot even within the Circuit that had decided them.  And while there was a footnote in the BIA’s acclaimed decision inMatter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6.  It appears that Matter of Douglas may be the first BIA decision to go flatly against a contrary Circuit precedent under Brand X and do so to the benefit of the immigrant respondent.

The possibility of using Brand X as a force for good has been raised before, notably by Gary Endelman and Cyrus D. Mehta in their articles on “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, as well as their post on this blog which explained how the BIA’s decision in Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), implementing the Supreme Court’s striking down of Section 3 of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013), effectively overruled the Ninth Circuit’s earlier decision in Adams v. Howerton, 637 F.3d 1036 (9th Cir. 1982) in regard to recognition of same-sex marriages for immigration purposes.  Like Matter of F-P-R-, however, Matter of Zeleniak had not explicitly relied on Brand X.  In this regard, Matter of Douglas is a significant step forward.Of course, Brand X is not always a force for good.  Less than a year ago, for example, the BIA decided in Matter of M-H-, 26 I&N Dec. 46 (BIA 2012), that it would disregard the Third Circuit’s decision in Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), and follow its own prior decision in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), so as to consider even some crimes that are not aggravated felonies as “particularly serious crimes” which can bar withholding of removal.  The merits of Matter of M-H- (which this author considers dubious) are beyond the scope of this blog post, but it is only one example of the fact that the BIA can seek to rely on Brand X to strip applicants for relief of protection that a Court of Appeals has given them.  Also within the last year, the BIA invoked Brand X in Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), to find that violation of California Penal Code 314(1), regarding indecent exposure, was categorically a crime involving moral turpitude, despite the contrary decision of the Court of Appeals for the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010).  Nor are these the only examples; an exhaustive list of all instances in which Brand X has been invoked by the BIA to the advantage of the Department of Homeland Security and the disadvantage of an immigrant would unnecessarily lengthen this blog post.Now that the BIA has acknowledged in Matter of Douglas that Brand X is not a one-way ratchet and can also work in favor of immigrants, however, it is important for practitioners to keep Brand X in mind when they are faced with unfavorable Court of Appeals case law interpreting an ambiguous immigration statute.  Especially where existing BIA case law in other circuits is more favorable, an unfavorable Court of Appeals decision in a particular circuit need not be the last word.

Cyrus Mehta

BAD TIMING ALBERTO: BIA HAS CONFIRMED THAT SAME SEX SPOUSES CAN GET IMMIGRATION BENEFITS AFTER UNITED STATES V. WINDSOR

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Former Attorney General Alberto Gonzales, along with an immigration attorney, David Strange, published an Op Ed in the New York Times entitled What the Court Didn’t Say on July 17, 2013. They muddy the waters by contending that despite the recent Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675 (2013) which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional, it is not clear whether same sex spouses may be entitled to immigration benefits as Congress always intended spouses to be of the opposite sex under the Immigration and Nationality Act (INA). For those who do not know, Mr. Gonzales was the Attorney General who authorized the infamous torture memos during the Bush administration. His essay too involves tortured reasoning as we shall see.

What the Op Ed does not tell us is the dramatic extent to which DOMA was an aberration, a break from the long-standing American tradition that the regulation of marriage belonged to the states:

The durational residency requirement under attack in this case is a part of Iowa’s comprehensive statutory regulation of domestic relations, an area that has long been regarded as a virtually exclusive province of the States. Cases decided by this Court over a period of more than a century bear witness to this historical fact. In Barber v. Barber, 21 How. 582, 584 (1859), the Court said: “We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce . . . .” In Pennoyer v. Neff, 95 U. S. 714, 734-735 (1878), the Court said: “The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved,” and the same view was reaffirmed in Simms v. Simms,175 U. S. 162, 167 (1899)

Sosna v. Iowa, 419 U.S. 393, 404 (1975)

From this perspective, it is DOMA that stands out as a radical departure from well-established jurisprudence and its judicial invalidation as a prudent exercise in constitutional restoration. Ambiguity over the immigration impact flowing from DOMA’s demise, contrary to what Gonzales contends, is not created by Windsor’s unremarkable reaffirmation of the Congressional power to disallow any immigration benefit from marriage fraud. This issue was not before the Court. The question of the moment was not whether Congress could define the scope of marriage as part of its plenary power over immigration, something which all acknowledge, but whether DOMA was a constitutionally permissible manifestation of such authority. We now know that it was not.

Ironically, the publication of the essay coincided with the issuance of Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) by the Board of Immigration Appeals on the same day, which held that United States v. Windsor was applicable to non-citizen same sex spouses seeking immigration benefits. Even before Windsor and Zeleniak, there had been hints of a thaw in the way that federal authorities thought about same sex marriage. In Matter of Dorman, 25 I& N Dec. 485 (A.G. 2011), Attorney General Holder vacated the BIA’s removal order so that it could consider whether, absent DOMA, a same sex spouse could create the kind of familial relationship to sustain remedial relief through cancellation of removal.

Matter of Zeleniak affirms the long held view that the marriage must be legally valid in In Zeleniak the same sex marriage was valid under the laws of Vermont. As with the Windsor decision itself, Zeleniak marked not the breaking of new ground but a long overdue return to orthodox principles that the BIA had repeatedly embraced: 

Therefore, the validity of a marriage for immigration purposes is generally governed by the law of the place of celebration of the marriage… Matter of Luna, 18 I&N Dec. 385 (BIA 1983); Matter of Bautista, 16 I&N Dec. 602 BIA 1978); Matter of Arenas, 15 I&N Dec. 174 BIA 1975); Matter of P-, 4 I&N Dec. 610 (BIA, Acting A.G. 1952)

Matter of Hosseinian 19 I&N Dec. 453, 455 (BIA 1987); See also In re Gamero, 14 I&N Dec. 674 (BIA 1974)

The next question in Zeleniak was whether the restrictions in section 3 of DOMA were applicable, which prior to United States v. Windsor they were. Section 3 of DOMA provided: 

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the work “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 

On June 26, 2013, while the appeal in Zeleniak was still pending at the BIA, the Supreme Court in US v. Windsor struck down section 3 of DOMA. The following passage of the Supreme Court decision, also cited in Zeleniak, is worth noting: 

The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. 

US v. Windsor at 2693

As a result of the repeal of the section 3 DOMA impediment, the BIA in Matter of Zelenaik held that since the marriage was valid under the laws of the state where it was celebrated, it would be recognized for immigration purposes. The BIA remanded to the USCIS to determine whether the marriage was bona fide, which was the sole remaining issue. The ruling is applicable to various provisions of the INA, including sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status). 

While Zeleniak has clearly interpreted“spouse” to mean someone of the same sex or opposite sex, so long as the marriage was valid in the place where it was celebrated, Gonzales and Strange still argue that there is sufficient legal ambiguity in the definition of spouse in the INA. 

They cite a 1982 case, Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) where the United States Court of Appeals for the Ninth Circuit held that Congress only intended to define a citizen’s spouse as a person of the opposite sex in the INA. It is worth noting the genesis of that case: the marriage petition was denied by the then Immigration and Naturalization Service on the ground that “[Adams and Sullivan] have failed to establish that a bona fide marital relationship can exist between two faggots.” Whatever reliance that Gonzales and Strange may have placed in Adams v. Howerton, it may no longer have any force after Zeleniak since Zeleniak has overruled Adams v. Howerton. 

How can a lowly decision of the BIA overrule a decision of the lofty Ninth Circuit Court of Appeals? Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute. 

Congress had delegated to the legacy INS, and now to the DHS (and to the EOIR), the authority to unpack the meaning of the INA. Nowhere in this foundation statute do we find any definition of “spouse” though INA Section 101(b) defines both “parent” and “child”.The possibility exists that this is no accident. Under the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of all else), one logical inference from this conspicuous omission is that Congress did not feel the imposition of a statutory definition was central to its regulation of immigration law or policy, preferring instead to leave it to those federal agencies charged with its administration to interpret what a “spouse” properly meant. That is precisely what the BIA in Zeleniak has done. Rather than seeking to prolong indecision when no reason for it exists, which is the purpose and consequence of the Gonzales and Strong position, the swift and sure response by USCIS to the end of DOMA reflects a deference to the Constitution that Attorney General Gonzales would do well to emulate. As a professor of constitutional law, doubtless Attorney General Gonzales knows full well that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong…” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 395 (1969).

Thus, under Brand X, the BIA’s interpretation of spouse in the INA, which is undoubtedly ambiguous, has been interpreted to mean a spouse of the same or the opposite sex in Zeleniak. Whatever doubts Adams v. Howerton may have caused with respect to the definition of spouse in the immigration context, and further sowed by Gonzales and Strong, they have been laid to rest by the agency’s interpretation of “spouse” in Zeleniak.

Even if Gonzales and Strong could not have foreseen Zeleniak spoiling their show on the day their Op Ed was published in the New York Times, they ought to have known that the immigration agency has always recognized the validity of the marriage based on where it is celebrated. But for DOMA’s impediment, whether the marriage was been same sex or opposite sex spouses, the marriage would have been recognized. Thus in Matter of Lovo, 23 I&N Dec. 746 (BIA 2005), decided long after Adam v. Howerton, so long as North Carolina recognized the marriage between a male citizen and a post-operative transsexual female, the marriage would be considered valid under immigration law and section 3 of DOMA would no longer be an impediment. 

While Congress has enormous powers over immigrants, and can determine that even a valid marriage has to be a bona fide marriage and not be entered into solely to gain an immigration benefit, it cannot pass laws that our patently unconstitutional – even if those affected are immigrants. Secretary Napolitano recognized this soon after Windsor found section 3 of DOMA unconstitutional by announcing: “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Brand X has also done a great hatchet job by allowing the BIA to forever demolish Adams v. Howerton. 

America’s immigration laws have often been a window into our national psyche. The national origins quota of 1924 flowed directly from the widespread disillusionment with World War I and rising concerns over the dangers of foreign radical thought. The myriad ideological grounds of exclusion strewn throughout the McCarran-Walter Act of 1952 were eloquent if silent testimony to the tensions of the early Cold War. The Immigration Act of 1965 which abolished the national origins quota and opened up America to global migration was part and parcel of the civil rights crusade of the Great Society. Just the same way, the judicial emasculation of DOMA supported by the ready cooperation of the BIA, Attorney General Holder and Secretary Napolitano did not happen in a vacuum but, rather, emerged out of a societal sea change on marriage equality that has finally found legal expression. This is as is it should be for the meaning of America has always changed as Americans themselves have changed. The great American poet of the anti-slavery movement James Russell Lowell once famously remarked that “Once to every man and nation comes the moment to decide.” Mr. Attorney General, when it comes to the cause of marriage equality, America has made its decision.

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)